Citation Nr: 0516646
Decision Date: 06/17/05 Archive Date: 06/27/05
DOCKET NO. 97-10 285A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to an increased disability evaluation for the
veteran's right eye endophthalmitis, currently evaluated as
10 percent disabling.
2. Entitlement to a total rating for compensation purposes
based on individual unemployability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. T. Hutcheson, Counsel
INTRODUCTION
The veteran had active service from January 1952 to January
1953.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a March 1996 rating decision of the
San Juan, the Commonwealth of Puerto Rico, Regional Office
(RO) which denied an increased evaluation for the veteran's
chronic "left" eye endophthalmitis and a total rating for
compensation purposes based on individual unemployability.
In October 2003, the Board remanded the veteran's claims to
the RO for additional action.
REMAND
Again, the Board observes that service connection has been
established for right eye enucleation with a prosthesis and
chronic right eye endophthalmitis. In its March 1996 rating
decision and the subsequent procedural actions taken
thereafter, the RO erroneously framed the issues on appeal as
entitlement to an increased disability evaluation for the
veteran's chronic left eye endophthalmitis and a total rating
for compensation purposes based on individual
unemployability. Service connection is not in effect for any
left eye disability.
In its October 2003 remand instructions, the Board directed,
in pertinent part, that the RO was to review the veteran's
claims files and ensure that all notification and development
action required by the VCAA as to his claim of entitlement to
an increased evaluation for his service-connected right eye
endophthalmitis was completed; to adjudicate his entitlement
to an increased disability evaluation for his right eye
endophthalmitis; and to readjudicate his entitlement to a
total rating for compensation purposes based on individual
unemployability. In March 2004 and October 2004, the
Department of Veterans Affairs (VA) provided Veterans Claims
Assistance Act of 2000 (VCAA) notices to the veteran and his
accredited representative which addressed the veteran's claim
of entitlement to an increased evaluation for left eye
endophthalmitis. In April 2005, the VA issued a supplemental
statement of the case (SSOC) to the veteran and his
accredited representative which addressed the issues of the
veteran's entitlement to an increased evaluation for left eye
endophthalmitis and a total rating for compensation purposes
based on individual unemployability. The United States Court
of Appeals for Veterans Claims (Court) has held that the RO's
compliance with the Board's remand instructions is neither
optional nor discretionary. Stegall v. West, 11 Vet. App.
268 (1998).
Accordingly, this case is REMANDED for the following action:
1. Review the claims files and ensure
that all notification and development
action required by the VCAA as to the
veteran's claim of entitlement to an
increased evaluation for his right eye
endophthalmitis is completed. All
notification requirements and development
procedures contained in 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.159, 3.326(a)
(2004) must be fully met.
2. Then adjudicate the veteran's
entitlement to an increased evaluation
for his right eye endophthalmitis and
readjudicate his entitlement to a total
rating for compensation purposes based on
individual unemployability. If the
benefits sought on appeal remain denied,
the veteran and his accredited
representative should be issued a SSOC
which addresses all relevant actions
taken on the claims for benefits, to
include a summary of the evidence and
applicable law and regulations
considered, since the issuance of the
last SSOC. The veteran should be given
the opportunity to respond to the SSOC.
The veteran is free to submit additional evidence and
argument while the case is in remand status. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The veteran's appeal must be afforded expeditious treatment
by the RO. The law requires that all claims that are
remanded by the Board or by the Court for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
_________________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).